Clarke, Dallas v State of New South Wales

Summary judgment 9UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court. 10UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 11UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1). 12Recently, in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b)The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. 13Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).

Conspiracy 14The relevant principles to the tort of conspiracy by unlawful means are: (a) The tort is committed when the defendants, by their agreement, intended to cause harm to the plaintiff. To bring that harm need not be their predominant motive, as is required for conspiracy by lawful means, but it is not sufficient merely to show that the conspirators' conduct necessarily involved injury to the plaintiff, or that the plaintiff was reasonably contemplated as likely to suffer harm (see Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 to 152). (b) Liability in tort for conspiracy arises only when an agreement is carried into execution (see McKernan v Fraser (1931) 46 CLR 343 at 407). (c) The plaintiff requires an unlawful means whether that be by the commission of a tort or a crime (see Williams v Henry (1959) 103 CLR 30). (d) The plaintiff must also show some loss as a result of the defendants' acts in furtherance of their agreement (see Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389 and 390; and Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at [34] and [40]).

The conspiracy pleadings 15In the conspiracy pleadings the plaintiff seeks the following relief: "1. An order that the NSW Police Force will remove, delete and/or destroy of (sic) all finger prints, photos and any other information unlawfully obtained by the (sic) them during the course of the unlawful on 8th December 2009. 2. An order that the NSW Police Force and NSW Government will remove, delete and/or destroy of all police and court records describing the vexation (sic) allegations. 3. An order that the NSW Government pay the sum for the liquidated damages of $500,000; aggravated damages of $2,000,000; and exemplary damages: $2,500,000. 4. A declaration of Magistrate Swain (sic) bias towards an indigenous and/or male accused. Or in alternative a declaration that rule of law is not a part of the NSW legal system and indigenous people are unworthy of lawful protection." 16The plaintiff also seeks damages (S/C [57] to [60]) including aggravated and exemplary damages. 17The orders sought in respect of removal of fingerprints and that the Police and New South Wales Government remove all Police and court records pertaining to the plaintiff has been sought in both all the proceedings. 18So far as the conspiracy is concerned, the plaintiff alleges that "over a period of many years an implicit understanding has developed between members of the New South Wales Police Force and members of the New South Wales Judiciary where the protection of the State's interest has been interpreted as concealing the criminal actions of State employees. The plaintiff further alleges that on reliance of this implicit understanding, Senior Constable Marcus Varin participated in a conspiracy to pursue a knowingly false prosecution against the plaintiff on the instructions of Ms Ann-Marie Herd and an unidentified police officer in the benefit of two students, Ms "A" and Ms "B", in her care." (S/C [2]). 19Other parties to this alleged conspiracy are named as Sergeant Percival, Sergeant Jeffrey Oakley, Sergeant Plummer, the Police Commissioner Andrew Scipione and Judge Charteris of the District Court. 20The plaintiff further alleges, "that the Police have acted in reliance on the expectation of favourable rulings, to arbitrarily arrest and maliciously prosecute him. Knowing that they would be awarded favourable decisions from the judiciary, they would reliably able to hide the real motivations for the persecution. He also alleges that this understanding has also been demonstrated by the willingness of Magistrate Swain to exploit her position as a judicial officer to make arbitrary rulings that favour the Police and to routinely suppress and alter court records to conceal admissions and evidence brought during court proceedings that adversely affect the Police." (S/C [3]). 21The plaintiff also alleges, "that these events identify that the conspirators have acted in concert as a self appointed "Lord Protector", where individuals will be arbitrarily arrested by the Police for implicit offences and found guilty by complaint judicial officers who will impose fictitious legal obligations. This understanding extends to ignoring legitimate legal rights, centuries established common law rights and to the ordinary basic legal duties. It is this circumvention of established principles that shows defiance from the excepted legal rules where by Parliament will decree the law and acceptable social standards, not members of the Judiciary. It is this understanding that the judiciary will ignore the law rights and impose fictitious obligations to identifiable subgroups within the NSW Community, whether they be: Indigenous people; paedophiles; motorcycle gang members; or Middle Eastern ethnic minorities, which substantiates the conspiracy to commit treason." (S/C [4]). 22The plaintiff also alleges, "that around midday on 7 December 2009, that he was initially contacted by the Senior Constable in regard to these events and in a later phone call it was agreed that the plaintiff would attend Parramatta Police station for a voluntary meeting the proceeding day about 10.00 am" (S/C [15]) and on "8 December 2009, the Senior Constable did unlawfully arrest him while in his own home and did so in co-operation with Ms Herd, for the benefit of Ms A and Ms B, on the allegation of stalking under s 545B(1)(ii) of the Crimes Act 1900, although the allegations never substantiated the stalking charge." (S/C [17]). 23While the actual date is not apparent from the pleadings or submissions, it seems to be around 26 May 2012, that Magistrate Swain in the Local Court, after presiding over a contested hearing spanning a number of days, dismissed the charge against the plaintiff. 24In summary, (and I have not included all the allegations) the plaintiff pleads that the Magistrate:

• Used her position to make numerous unlawful rulings designed to protect the unlawful conduct of the Police and frustrate the law defence of the plaintiff.
• Gave consistently favourable rulings for the Police
• Denied the plaintiff of even the most basic rights at law that encouraged the Police to persist with a malicious prosecution.
• Allowed a modification to the indictment.
• Deprived the plaintiff of the option to be tried by a jury.
• Allowed unlawfully obtained evidence to be used against him.
• Allowed fictitious obligations to be used against him to prohibit evidence under an extremely broad interpretation of the credibility rule.
• Ignored evidence that contradicted the complainant's credibility regarding the complainant's willingness to lie under oath and on statements, which the complainant agreed with during cross examination.
• Allowed unlawfully hearsay and prejudicial evidence to be used against the plaintiff in contradiction to rights granted by various provisions of the Evidence Act 1995.
• Applied over-exaggerated legal interpretation such as the misreading of the law.
• Imposed a sexist assumption that all men are inherently violent and violated the plaintiff's rights under various statutes and common law.
• Subversively suppressed testimony from the court transcript and changed the official court transcript thus prohibiting the truth from being revealed in future legal actions.
• Indulged in the wilful destruction and manipulation of evidence to protect her actions and the actions of the Police. 25In Public Trustee v Gittoes aka Caldar [2005] NSWSC 373, where similar claims were made about the judiciary, White J stated at [122] to [127]: "122 In defending these proceedings, the defendant made many allegations of criminal conduct against the Public Trustee and bias and corrupt conduct on the part of the New South Wales judiciary. Those allegations were contained in two statutory declarations which he made and which were attached to a document called "Defence ". They were tendered by the plaintiff. There was no evidence in the proceedings to support the allegations. It is unnecessary to go through them all. In relation to the allegations against the Public Trustee, one example will suffice. The defendant asserted that the Public Trustee, with the leave of the Supreme Court, was committing perjury and making false and misleading statements. When asked to identify a particular statement made by the Public Trustee which he alleged was perjured, the defendant was unable to do so, saying only that it was contained in some document which he did not have to hand. The allegation that the New South Wales judiciary had given leave to the Public Trustee to commit perjury is as offensive as the allegation of perjury itself. 123 The defendant alleged that the judiciary was partial to the Public Trustee because the Public Trustee participated in the Supreme Court's Probate Users Group, a committee comprising a senior judge, (who did not hear any of the defendant's applications), court officers, representatives of the legal profession, trustee organisations and the Public Trustee. Like similar committees it reviews the efficiency of the Court's procedures and suggests reforms. He also alleged that judges received financial remuneration from the Public Trustee. This allegation was based on s 10 of the Public Trustee Act pursuant to which clerks in a Local Court may be appointed agents of the Public Trustee to carry out administrative functions and on clause 12 of the Public Trustee Regulation 2001, which provides for estates to be charged to cover the remuneration of persons so appointed. Supreme Court judges are not clerks of the Local Court. They perform judicial functions. They are not agents of the Public Trustee. 124 It was by putting a sinister complexion on these matters that the defendant sought to justify his serious allegations. I will not dignify the defendant's other allegations by reciting them. None of them had any proper basis. 125 The significance of this material is that it demonstrates the preparedness of the defendant to abuse the processes of the court by making allegations which, if made by a legal practitioner on behalf of a client, would properly result in disciplinary proceedings against that practitioner. The defendant is under no such constraint. At the hearing before me I had to warn the defendant on a number of occasions that he was abusing his privilege as an advocate. The defendant said that he intended to repeat the same allegations which are contained in his statutory declarations at the hearing of the applications which have been listed before the Court of Appeal on 11 May 2005. He sees the courtroom as a forum in which publicly to ventilate these matters. In doing so, he has an absolute privilege against defamation. 126 The plaintiff referred me to the observations of the Court of Appeal in Wentworth v Graham [2003] NSWCA 229; (2003) 57 NSWLR 741, dealing with the Court's inherent jurisdiction to supervise the conduct of interlocutory applications in existing proceedings, where a litigant has consistently abused the process of the court, inter alia, by making scurrilous and baseless allegations. There the Court of Appeal made orders requiring the litigant to show cause in writing, by way of affidavits and written submissions, why orders should not be made to restrain both the kind of interlocutory applications which she could bring, and the manner in which further interlocutory applications should be brought, in particular, that there not be further oral hearings of such applications. The inherent jurisdiction of the Court to regulate the conduct of a pending action so as to control the unwarranted and vexatious making of interlocutory applications was explained by the High Court in Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 at 319-320. The Court said at 320: "... there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court. " 127 The High Court observed that such inherent power may be superseded by statute or by rules of court. " 26Similarly, in these conspiracy proceedings, the plaintiff has not provided particulars of the "implicit understanding" between "members of the NSW Police Force" and "members of the NSW Judiciary" (see S/C [2]). The plaintiff further alleged that the "conspirators" have committed treason (see S/C [4]). 27The defendant submitted that the conspiracy claim is vexatious and unwarranted and given the nature of the allegations, the cause of action ought be dismissed. During the hearing the plaintiff informed this Court that he holds a law degree having graduated from University of New South Wales in 2003. He has never practiced. His mother was lawyer and he grew up around law firms (T 18.9-22). Hence, it is surprising given his legal knowledge that he has made these scurrilous, unwarranted and vexatious allegations against the Police and the Judiciary without proper foundation. 28It is difficult also to comprehend how the Magistrate could have been part of an agreement with the Police with the intent to cause harm to the plaintiff. After hearing the evidence, the Magistrate dismissed the charge that had been brought by the Police. In other words, one of the major participants to the alleged agreement had acted directly contrary to the terms of the agreement. As there cannot be an agreement without one of the necessary participants, the tort of conspiracy cannot be made out. In my view, it is also an abuse of process to allow this action to go forward. This pleading is not one that can be cured by amendment. It should be dismissed.

Judicial immunity 29For completeness, I shall address the issue of judicial immunity. The defendant submitted that as the complaints arise out of the way that the court proceedings were conducted, the Magistrate has the benefit of judicial immunity and the claim against her ought to be dismissed. 30Subsection 44B(1) of the Judicial Officers Act 1986 provides: "44B Immunity of certain judicial officers (1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge." 31For the purposes of the Judicial Officers Act, a judicial officer includes a Magistrate (see s 3 of the Judicial Officers Act). 32Section 44A of the Judicial Officers Act provides: "44A Immunity of Supreme Court Judges The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge." 33Judicial immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour (see Fingleton v The Queen (2005) 227 CLR 166 at 186). 34In D'Orta-ekenaike v Victoria Legal Aid (2005) 223 CLR 1, Gleeson CJ, Gummow, Hayne and Heydon JJ held at [40]: "The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments. " 35In Fingleton v The Queen (2005) 227 CLR 166, Gleeson CJ referred to Sirros v Moore [1975] QB 118 at 132 and In re McC (A Minor) [1985] AC 528 at 54 and explained at [38]-[39]: "This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White (484 US 219 at 226-227 ((1988)), that Court on a number of occasions has 'emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.' She said that '[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits'. This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions." 36Doing the best I can to understand the plaintiff's submissions on this topic, he referred to Part 4 of the Law Reform (Vicarious Liability) Act 1983 where it states that this Act binds the Crown. He also referred to the definition of "independent function" in s 5 of the Law Reform (Vicarious Liability) Act. He argued that although the Magistrate is an independent judicial officer, her wages are still paid by the Crown, and as such her Honour would still be a servant of the Crown. According to the plaintiff it is further established that the Magistrate is an officer of the Crown because she is able to be represented by the Crown Solicitor's Office and not required to get her own legal representation. He referred to s 6 of the Act which defines a police officer as a person in the service of the Crown and not a servant of the Crown and s 9B(2) which states, "Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown." 37Therefore, I think he argues that the Magistrate is an officer of the Crown and that he is entitled to make a claim against the Magistrate for the tort of conspiracy. Even if this proposition was correct (which I doubt) the Magistrate is entitled to judicial immunity pursuant to the common law and s 44B(1) of the Judicial Officers Act. 38It is my view that the complaints made by the plaintiff against the Magistrate arise from her performance of her duties as a judge for which she has judicial immunity. This is a further reason as to why the proceedings to conspiracy cannot be made out, cannot be cured by amendment and should be dismissed. 39The result is that these proceedings 2013/111053 Dallas Clarke v State of New South Wales are dismissed. 40The causes of action of malicious prosecution and wrongful arrest are to be pleaded in one amended statement of claim in proceedings. I nominate proceedings 2013/111083 Dallas Clarke v State of New South Wales, such amended statement of claim is to be filed and served on or before 5.00 pm on 6 November 2013. 41Proceedings 2013/111036 Dallas Clarke v State of New South Wales are dismissed. 42Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

The Court orders that: (1) Proceedings 2013/111053 Dallas Clarke v State of New South Wales are dismissed. (2) The causes of action of malicious prosecution and wrongful arrest are to be pleaded in one amended statement of claim, in proceedings 2013/111083 Dallas Clarke v State of New South Wales, such amended statement of claim is to be filed and served on or before 5.00 pm on 6 November 2013. (3) Proceedings 2013/111036 Dallas Clarke v State of New South Wales are dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

The Court determines that: (5) In the interests of the administration of justice Mr Dallas Clarke be referred to a Registrar for referral to a barrister or solicitor for legal assistance in redrafting his amended statement of claim in 2013/111083 Dallas Clarke v State of New South Wales.

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